The Agreement, Under the Microscope

I'm finding it quite fascinating how people on both sides of the nuclear option issue are either hollering "we won, yay!" or "we lost, our side caved in." More than anything else I think this speaks to the beauty of the compromise reached by "The Fourteen." But, just as an exercise, I wanted to take a look at the text of the deal itself, section by section, and see if there's an advantage there for either side.

Section: "A. Votes for Certain Nominees. We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit)."

Advantage: Republicans. President Bush is going to get up-or-down votes on three of his most controversial judicial nominees, and it is at least somewhat likely that they will be confirmed. Under the current rules, these judges would not have achieved cloture, and would have been subject to continuing indefinite delays. Now, however one feels about them, they're probably going to be confirmed.

Section: "B. Status of Other Nominees. Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit)."

Advantage: Democrats. Myers and Saad could potentially remain filibustered, and probably will.

Section: "A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."

Advantage: Democrats. Extraordinary is in the eye of the beholder. This was, as I understand it, the major sticking point, but it stuck. The right to use the filibuster in the future is preserved.

Section: "B. Rules Changes. In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII."

Advantage: Republicans and Democrats, the Senate, and the country. There is no question in my mind that the use of the nuclear option would have done a tremendous amount of harm to the Senate's ability to function, would most likely have backfired on the Republicans in the long term, and would have resulted in even more controversial judicial nominees, which the Democrats would then have been powerless to stop.

Section: "We believe that, under Article II, Section 2, of the United States Constitution, the word 'Advice' speaks to consultation between the Senate and the President with regard to the use of the President’s power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration."

Advantage: The country. Should the president accept this offer, it would go far to decrease the level of animus between the branches, and would result in the nomination (and undoubtedly the speedy confirmation) of qualified, acceptable judges in the future.